Unpublished Disposition, 909 F.2d 1488 (9th Cir. 1989)

MEMORANDUM^** 

OVERVIEW

Appellant Thomas Abbott appeals a grant of Summary Judgment in favor of appellee, the Boeing Company, claiming that the federal district court did not have subject matter jurisdiction over the case and that the court erroneously granted summary judgment. In addition, appellant appeals the district court's order compelling discovery and awarding attorney's fees for appellee's costs of compelling the discovery. We affirm the judgment and order of the district court.

Abbott was discharged by Boeing on October 17, 1986 for excessive absences and for failure to follow company attendance reporting procedures. On October 16, 1987 Abbott filed a complaint in the Superior Court of Washington alleging breach of contract governed by a collective bargaining agreement, tortious conduct and discrimination. The case was removed to federal district court. Appellant did not file an opposition to defendants' Petition for Removal. In fact, appellant filed no documents the entire time the case was in the district court.

On February 24, 1989, the district court granted an order compelling Abbott to produce documents and compelling Abbott and his wife, Betty Abbott, to answer deposition questions. In addition, the February 24 order required Abbott to pay attorneys fees of $750.00 for the costs of compelling discovery.

Appellees filed a motion for summary judgment with supporting affidavits on March 30, 1989. Abbott did not respond to this motion. On May 3, 1989, the court granted the motion for summary judgment. Specifically, the court found that Abbott's breach of contract claim was barred by a six month statute of limitations and that Abbott had failed to establish a prima facie case on his other claims. Abbott filed a timely notice of appeal.

DISCUSSION

Appellant's first claim is that the district court did not have subject matter jurisdiction to hear the case. In his complaint, Abbott stated explicitly that the terms and conditions of his employment with Boeing were governed by a collective bargaining agreement. His breach of contract claim, therefore, alleged a breach of that agreement. A complaint alleging breach of a collective bargaining agreement is governed by Section 301 of the Labor Management Relations Act (hereafter "Section 301"), 29 U.S.C. § 185(a). Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 23 (1983); Carpenters S. Cal. Admin. v. Majestic Housing, 743 F.2d 1341, 1345 (9th Cir. 1984). Since Abbott's complaint alleged a cause of action governed by federal law, the federal district court had jurisdiction to hear the case and removal was valid pursuant to 28 U.S.C. § 1441(a). The federal district court had pendant jurisdiction to hear the other, state law, claims pursuant to 28 U.S.C. 1441(c). We therefore find that the district court did have subject matter jurisdiction over this case.

Appellant also challenges the February 24, 1989 order compelling discovery. Abbott argues that he properly asserted his fifth amendment right against self-incrimination when he was asked at deposition whether he intended to kill defendant William Moore. Since that information was not relied on by appellees in making the motion for summary judgment or by the court when it granted summary judgment, appellant's claim on appeal must concern the $750.00 that the court ordered Abbott to pay in attorneys' fees in the order in which the court compelled him to answer the deposition questions.

The award of $750.00 was granted to cover the costs of compelling discovery pursuant to Fed. R. Civ. P. 37(a) (4). This award was part of an order compelling two other forms of discovery: the production of documents and the deposition answers of Betty Abbott. Since the award would have been valid for an order compelling those other two forms of discovery alone, it would have been valid even if appellant is correct and his answers were protected by the Fifth amendment to the United States Constitution. Fed. R. Civ. P. 37(a) (4). Therefore, we affirm the district court's order of February 24, 1989, awarding appellees attorneys' fees.

Finally, appellant claims that it was inappropriate for the district court to grant summary judgment when appellees' states of mind were at issue. A grant of summary judgment is reviewed de novo. States Farm Fire and Casualty Co. v. Martin, 872 F.2d 319, 320 (9th Cir. 1989). We determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact. Tzung v. State Farm Fire and Casualty Co., 873 F.2d 1338, 1339-1340 (9th Cir. 1989).

Viewing the evidence in the light most favorable to Abbott, we conclude that appellees' state of mind are not at issue. The district court granted summary judgment on the breach of contract claim because it was filed after the statute of limitations barred the claim. The court granted summary judgment on the state law discrimination claim because Abbott failed to establish a prima facie case of discrimination. Since appellant failed to support his complaint with any affidavits and failed to file any opposition to appellees' motion for summary judgment, we agree with the district court that appellant failed to establish a prima facie case. Because appellees states of mind were not at issue, as appellant argues, we find that summary judgment was appropriate.

Finally, we grant appellee's request for attorneys' fees and order appellant to pay appellees double costs pursuant to Fed. R. App. P. 38 for bringing a frivolous appeal. See Glanzman v. Uniroyal, Inc., 892 F.2d 58, 61 (9th Cir. 1989). After filing this case, appellant did nothing to litigate it actively and repeatedly failed to cooperate with discovery. There was no basis in the facts of the case or the law for appellant to file an appeal. Appellant cannot expect relief for baseless claims on appeal, particularly if he does not actively pursue his claims in the district court. We therefore remand to the district court for computation of attorneys' fees.

AFFIRMED and REMANDED for computation of attorneys' fees.